CBD Isn’t Federally Legal... or Is It?

The Beneficial Cannabis Compound’s Current Legal Status Is Confusing

THIS IS a tricky question without a simple answer, and it gets trickier by the day. If you want a short answer, I’d say that right now, today, CBD products are probably illegal—though some people would disagree with me. If you want a good answer, read on.

As you know, cannabis contains many dozens of compounds called “cannabinoids.” The two most prominent cannabinoids are tetrahydrocannabinol (THC) and cannabidiol (CBD). Each has a different effect on the human body: THC gets you high; CBD, not so much. Still, CBD products are great, and you can find them even in prohibition states, sold for medical and recreational use.

CBD vendors argue that products without THC are legal under federal law. The argument goes like this: “Marihuana” and THC are both listed as Schedule I substances in the Controlled Substances Act (CSA) (“high potential for abuse; no currently accepted medical use”); however, the CSA excludes “mature stalks” from its definition of the cannabis plant. Therefore, CBD products sourced from mature stalks and devoid of THC are not barred by the CSA. Follow?

From there, it gets trickier still. For purveyors of CBD products, the legal loophole allowing for CBD products may have been closed. Late last year, the mandarins at the Drug Enforcement Administration (DEA) issued a rule defining “Marihuana Extracts” to include all extracts with “[CBD] that has been derived from any plant of the genus Cannabis.” The DEA rule went into effect on January 13, and the DEA was sued immediately by an offended group of hemp farmers.

The hemp farmers contend that the DEA’s new rule conflicts with federal law. Specifically, they argue that Congress made “mature stalks” legal under the CSA, and they observe that Congress also passed the 2014 Farm Bill, to green-light industrial hemp programs like the one we have in Oregon. These are excellent arguments. The DEA has replied, in official statements, that its rule is just a “coding” step and CBD was already illegal under the CSA anyway. The DEA made similar arguments in 2003 and 2004 when it last tried to reclassify cannabinoids, and lost.

At the end of the day, it’s important to remember that when a rule conflicts with a law, the law prevails. Right now, though, the rule is just sort of hanging out there, confusing everybody. The burden is on the hemp farmers to show that DEA got it wrong.

I am cautiously optimistic that the court will strike the DEA rule, citing the plain language of the law (the CSA). This case is seated in the US Court of Appeals for the Ninth Circuit, which is promising: The Ninth Circuit is a liberal outpost encompassing all of California, Cascadia, and even far-flung Guam. It has recently given the cannabis industry a few big wins—let’s hope to see another one.